Criminal Procedure-Police Practices
Nunn
Fall 2015
I. Two main functions of criminal justice system
a. Determination of guilt
i. Investigatory procedures (was the law broken?)
1. Arrest, search and seizure, wiretapping, surveillance, evidence collection, interrogation, entrapment, identification procedures
ii. Accusatory procedures (who do we think broke it?)
iii. Adjudicatory procedures (who in fact broke it?)
b. What is going to happen to them?
II. Race and US Criminal Procedure
a. Virtually all of the cases that led to application of due process to state prosecutions involved race and Black defendants
b. Strauder v. West Virginia (18__)
i. No intentional exclusion of blacks from juries
c. Moore v. Dempsey (1923)
i. Mob dominated trial denies due process
d. Powell v. Alabama (1923)
i. Requires counsel in death cases
e. Norris v. Alabama (1935)
i. Forbids virtual exclusion of blacks from juries
f. Brown v. Mississippi (1936)
i. “The deputy was put on the stand by the state…and admitted the whippings…And in response to an inquiry as to how severely he was whipped, the deputy said, ‘Not too much for a negro; not as much as I would have done if it were left to me.’”
III. The Fourth Amendment-Seach
a. “The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated, and no warrants shall issue but upon probably cause, supported by oath or affirmation and particularly describing the place to be searched, and the persons or things to be seized.”
b. U.S. v. Verdugo-Urquidez
i. Arrested by Mexican police and transferred to the US Border Patrol station in California, where US marshals arrested him. After he was arrested, DEA agents searched his houses in Mexico looking for evidence related to trafficking and the murder of a DEA agent, found a tally sheet of drugs smuggled, D filed a MTS because they didn’t have a warrant
ii. Issue: Whether the 4th amendment applies to the search and seizure by US agents of property that is owned by a nonresident alien and located in a foreign country?
iii. No, the people are those who have sufficient connections with the US.
1. Person ≠ people
a. 5th and 6th amendment protects everyone, but 2nd, 9th, and 10th refer to “the people” referring to a class of persons who are a part of a national community or who have otherwise developed sufficient connection with this country to be considered a part of that community
b. Court says that aliens only receive constitutional protections when they have some within the territory of the US and developed substantial connections with this country
c. U.S. v. Walther
i. Airport employee opens an overnight case that had been shipped as a “speed pak” after shaking it and thinking it was suspicious. Found white power and called DEA, determined it was cocaine and arrested person who picked up the bad. D filed MTS on 4th amendment violation
ii. Issue: whether the district court erred in finding that employee was acting as in instrument or agent of the DEA when he inspected the overnight case and found the cocaine?
iii. 4th amendment does not apply to private citizens, only to the government
iv. BUT, where a private party acts as an “instrument or agent” of the state in effectuating a search or seizure, 4th amendment interests are implicated
v. 2 critical factors in the “instrument or agent” analysis:
1. The governments knowledge and acquiescence
2. The intent of the party performing the search
vi. Government knew he was doing this, and seemed to encourage it because he was a CI at one point and getting paid
vii. Because he was previously getting paid for informing, his intent was to act as an agent of the government to hopefully get paid
d. U.S. v. Shahid
i. D tried to pull a slight of hand in a jewelry store, manager called security and they came and D gave the ring back and left. Found out he had done it at another store, so manager asked security officers to detain him until police arrived. Stopped him in parking lot, frisked and found ammunition and firearm, police came and arrested him. Was a felon and convicted of possession of firearm as a convicted felon
ii. Issue: Were the mall security guards acting as agents of the government, so as to make a stop and subsequent search illegal under the 4th amendment? Stopped him on a hunch, with nothing to link him to the previous case
iii. No, mall security were not agents of the state
1. Wasn’t contracted with the Sherriff’s office
2. But, sheriff wasn’t patrolling daily because there was an understanding that mall security was monitoring
iv. Focused on the intent of the security
v. Whether private party’s intent was to assist law enforcement or to assist his own end
vi. Mere knowledge and acquiescence isn’t enough without consent and control
e. Police and Third Parties- Takeaway
i. Private searches do not violate the 4th amendment
ii. 3rd party must intend to search on behalf of the government
iii. State must know and acquiesce in search
iv. State must consent and control search
f. When does the 4th Amendment apply?
iii. No, tracking involves no REOP because movements in public are in plain view
p. U.S. v. Karo
i. Relied on the beeper to know something they couldn’t have known unless officer went inside the house to look, which would be a searchàwas a search
ii. Query installation
q. U.S. v. Jones
i. SCOTUS 2012à courts most recent statement on the use of beepers
ii. GPS tracker placed on the undercarriage of a car
iii. Court says that placing a tracker on the car was an unreasonable search
iv. Query building
r. Curtilage Factors
i. Proximity of the home?
ii. Enclosure?
iii. Nature of use?
iv. Steps taken to protect from view?
s. U.S. v. White
i. Wiretaps do not violate the 4th amendment because D’s cannot rely on expectation that conversation would be private
t. Assumption of Risk
i. Agents and informants
1. No REOP because we assume risk or betrayal or deception (Hoffa v. U.S)
ii. Electronic Surveillance (Bugs)
1. No REOP where electronic devices are used. Hoffa rule applies
iii. Pen Registers and Pagers
1. No REOP because voluntarily convey info to the phone company (Smith v. Maryland)
iv. Thermal imaging
1. Use of thermal imager on home is a search where technology is not in general public use (Kyllo v. U.S)
u. Electronic Surveillance Statutes
i. Title III of the Omnibus Crime Control Act (Wiretap Act)
1. Preempts state provisions (although states can grant more)
2. Sets the minimum standard
3. Does not include: pen registers, trap and trace devices, email headers, cordless phones, track only pagers, tracking devices, video surveillance
4. Applies only to non-consensual conversation
5. Procedures:
